Practitioner Paper Problems and process: European merger Mathew Heim

Practitioner Paper Problems and process: European merger Mathew Heim

Journal of Public Affairs
Volume 4 Number 1
Practitioner Paper
Problems and process: European merger
control and how to use it
Mathew Heim
Received (in revised form): 23rd September, 2003
The Centre, 22 Avenue Marnix, B-1000 Brussels, Belgium; tel: +32 2 548 0260; fax: +32 2 548 0261;
e-mail: [email protected]/
Mathew Heim is a consultant at The Centre, an
international public affairs consultancy and think
tank in Brussels. He specialises in the different
public affairs and strategic communications aspects of EU competition policy and has advised or
represented companies on many of the most high
profile merger and anti-trust cases to come before
the European Commission in recent years. He
has written widely on communications in competition law, European institutional law and European
human rights law. He is a graduate from Bristol
and Exeter Universities and was called to the UK
Bar in 1993.
that the process is only quasi-legal, so that competition policy and industrial policy considerations may
filter into the regulator’s assessment. The impact of
politics is also explored; from high-profile political
interventions to low-key political negotiations.
Finally, there is a review of the perception of
lobbying and the question of the legitimacy of the
public affairs discipline in the context of EU merger
control.
KEYWORDS: public affairs, lobbying, merger control, European Commission
INTRODUCTION
ABSTRACT
This paper seeks to explore some of the public
affairs principles involved in the EU mergers and
acquisitions regulatory process, which affects most
corporate restructuring of a European scope. Following a brief overview of the EU merger review
process and the main role of public affairs in such
cases, the paper explores some of the more
sensitive issues that demand public affairs activities, and issues that are raised by public affairs
activities.
The paper focuses on the open nature of the EU
merger review process, which allows for wide
consultation; the imperfections within the EU
merger review process, which lead to confusion as to
where the exact point of decision lies; and the fact
Of all the regulatory hurdles relevant to
corporate restructuring, one of the most
potent, yet unpredictable, tends to be competition regulation. It is the framework within which corporate restructuring takes place
and can, in short order, force a radical change
on companies involved in corporate restructuring or, indeed, force a change on a whole
industry.
The importance of merger clearance in
restructuring strategies is self-evident, as industries that are going through wholesale
restructuring (such as recent oil, energy,
telecoms and aluminium industries merger
waves) are confined by competition rules.
The European Community’s Merger Con-
Journal of Public Affairs
Vol. 4 No. 1, 2004, pp. 73–85
& Henry Stewart Publications,
ISSN 1472-3891
Page 73
Problems and process: European merger control and how to use it
trol Regulation (EMCR), which governs
mergers and acquisitions at the European
level, specifically takes corporate restructuring into account. The EMCR states that the
Single European Market ‘is resulting and will
continue to result in major corporate reorganizations in the Community, particularly
in the form of concentrations’ and that the
European Commission, which is responsible
for European competition regulation, must
ensure ‘that the process of re-organization
does not result in lasting damage to competition’.
the whole college of European Commissioners.
Overview of the key procedural stages
In practice, one can effectively identify four
stages to a merger clearance:
•
THE EUROPEAN MERGER REVIEW
PROCESS
The European merger review process is
quasi-judicial, in that the Commission takes a
decision involving an assessment of law, facts
and economic principles, which affect the
rights of companies.1 Formal steps in the
merger review process are therefore necessary to fulfil the requirement of fair hearing.
It is therefore worth undertaking a brief
survey of the European merger review process, as this is the context within which
public affairs activities take place.2
European merger review is the responsibility of the European Commission, specifically the Competition Commissioner,
currently Mario Monti, and the Director
General for Competition, currently Philip
Lowe. The Directorate General for Competition (DG Competition), which has recently
undergone a radical reform, is made up of
different Directorates responsible for industrial sectors, most with specific merger teams,
and a slimmed-down Merger Task Force
(MTF). In principle, there are two stages to
merger investigations: a preliminary onemonth review and, if there are serious doubts
about the effect of the transaction on competition, a four-month in-depth review.3 In
preliminary investigations, the responsibility
for the decision rests with the Competition
Commissioner; however, in in-depth investigations, the final decision is placed before
Page 74
•
•
The first stage tends to be informal prenotification discussions between the
merging parties and the DG Competition case team, prior to formal filing.
There is no strict timeline to this process
but it is encouraged by the European
Commission and is expected of the parties. These informal discussions provide
an opportunity to discuss issues in a
neutral environment and to identify core
difficulties that will focus minds after
formal notification.
The formal filing of the transaction begins the initial one-month investigation
(Phase I), at the end of which a transaction can be cleared unconditionally or
with conditions. Where there are serious
concerns about the competitive impact
of the transaction, however, the case will
undergo further scrutiny. During Phase
I, the DG Competition case team will
canvass the views of third parties, mainly
competitors and customers. The majority
of cases are cleared at the end of this
process.
In the event that serious competition
concerns are identified, the DG Competition case team will undertake a fourmonth investigation (Phase II). This process involves a number of formal steps,
including allowing the parties access to
the case team’s file and the issuing of a
Statement of Objections (SO) that outlines the DG Competition’s principal
concerns. The parties may respond to
the SO in writing and at an Oral Hearing. Procedure will naturally vary on a
case by case basis, and the Commission
can terminate proceedings at any time in
a Phase II investigation, conditionally or
Heim
•
(rarely) unconditionally. The DG Competition case team also hears the views of
third parties, who will also have the
opportunity to attend the Oral Hearing.
The Member States’ Advisory Committee then provides a non-binding opinion
on the DG Competition draft decision.
The draft decision may or may not
include remedies (see below) which seek
to address any remaining competition
issues. The final draft decision is then
debated and voted on by the 20 Commissioners, who take a collegiate decision on the matter. It is during Phase II
cases that lobbying tends to be most
intense.
Although not a separate stage in itself,
remedies negotiations are significant due
to the fact that they can prevent a
transaction going through an onerous
Phase II investigation or because they
can save a deal. While companies may
submit remedies at any time, there tends
to be a level of uncertainty as to which
remedies should be submitted to the
Commission before it has firmed up its
case.4 This is compounded by a tight
timeframe and a ‘timing squeeze’ at the
end of the process. The viability of a
remedies package is tested with the market and with the Member States’ Advisory Committee.
The 2002 reform package
Matters are currently in a state of flux regarding the procedure. In December 2001, the
European Commission launched a wholesale
review of the EMCR and issued a consultative Green Paper. The Green Paper looked
at a number of jurisdictional, substantive and
procedural issues and wide consultation resulted in a new draft EMCR presented in
December 2002. This is currently wending
its way through the legislative process. In
conjunction with the revised Regulation,
DG Competition undertook a series of
further steps, including the publication for
consultation of a Draft Notice on Horizontal
Mergers to provide greater clarity to the
Commission’s approach and the restructuring
of DG Competition.
Following the eight high-profile prohibitions under Commissioner Monti’s tenure as
Competition Commissioner (compared with
ten prohibitions in the preceding nine years)
and high-profile withdrawals such as Skandinaviska Enskilda Bank/Fo¨reningsSparbanken
and EMI/Time Warner, a chorus of criticism
grew over the perceived unchecked nature
of DG Competition’s merger policy. Criticism focused on concerns that the MTF was
investigator, prosecutor, judge and jury. In
its defence, the Commission’s Green Paper
set out the view that existing checks and
balances were sufficient; however, submissions received on the Green Paper and other
commentators provided a detailed critique of
why the existing system was unsatisfactory.5
There was an overwhelming view that the
existing system needed to be reformed.6 As a
result of this, the Commission undertook a
series of additional reforms, which seek to
address concerns. These reforms7 include:
•
•
•
•
•
The appointment of a Chief Economist,
supported by a separate unit, to provide
guidance on economics and econometrics in the application of EU competition rules, as well as guidance in
individual cases.
The formalisation of an internal ‘peer
review panel’ to test the finding of the
DG Competition case team at key stages
in Phase II cases.
The publication of a Draft Best Practice
Guidelines on merger process, which
should ensure greater access to the Commission’s case file, state of play meetings
at key points in the DG competition case
and triangular meetings with third parties.
An increase in staff for the Hearing
Officer.
The earlier involvement of the Member
Page 75
Problems and process: European merger control and how to use it
•
States Advisory Committee Rapporteur.
The creation of a specific consumer
liaison unit within DG Competition to
address consumer concerns.
These proposals are in addition to the existing system of checks and balances, but it is
notable that very few aspects of the existing
system were revised or improved. This may
well be an acceptance by the Commission
that the existing system could not be sufficiently improved to guarantee a better quality of decision making. One could also argue,
however, that the existing system of consultations with other Commission departments
and member states were, in any event, never
meant to form an appropriate system of
checks and balances (Heim 2003: 32). The
new proposals are internal to DG Competition and do not benefit from the protection
which enshrining these steps in legislation
would provide.
Judicial review
A final word is necessary on judicial review
of Commission merger decisions. The European Court of First Instance (CFI) has the
jurisdiction to review the acts of the Commission; however, it has long been accepted
that the length of time which proceedings
take before the CFI makes judicial review
practically meaningless from a commercial
perspective. In 2002, the Commission suffered three resounding defeats at the hands of
the CFI, in the Airtours, Schneider and Tetra
appeals. The CFI used severe language in the
Airtours appeal (Case T-342/99, 6th June,
2002), concluding that the Commission’s
analysis in Airtours/First Choice was ‘vitiated
by a series of errors of assessment’ (para. 294)
and that the Commission prohibited the
transaction without having proved to the
requisite legal standard that the merger
would have had anti-competitive effects. In
the Schneider appeal (Case T-310/01, 22nd
October, 2002) the CFI found that the
Commission’s analysis in Schneider/Legrand
Page 76
contained ‘errors, omissions and inconsistencies’ which were of undoubted gravity (para.
404). While these decisions have had some
calming effect on the Commission’s merger
review policy, judicial review can rarely
revive a prohibited transaction (Heim 2003
a: 30), so that companies will prefer conditional clearance rather than unconditional
prohibition. One can but ask, however, how
the existing system of Commission checks
and balances allowed such serious errors to
occur, especially as the weaknesses in the
MTF’s case had been amply highlighted by
the parties during the Commission’s investigation. This situation has led one commentator to state that ‘the courts’ unquestioned
irrelevance to an individual deal’s outcome
would seem to place a premium on lobbying’
(Goldhaber 2002).
COMPANIES’ PUBLIC AFFAIRS NEEDS
From a company’s perspective, the objective
of EU public affairs activities in merger
proceedings tends to be to ‘persuade decision-makers in the Commission, as well as
those who influenced them both at panEuropean and member state levels, about the
benefits of the merger with reference to
arguments that [are] framed more widely
than the more technically based submissions
in the official notification’ (Hatcher 1999:
269). Even competition lawyers recognise
that building a consensus around a case can
be key and that ‘the importance of contacting
the other [officials] involved to gauge their
reactions and address their concerns should
not be underestimated — effectively ‘seeding’ [a] case with all the relevant individuals’
(Frederickson and Nourry 2003: 2). Ultimately, of course, companies are seeking
clearance on the right terms. If that is not
forthcoming, they must seek to ensure that
the Commission’s decision is clear and that
no precedent is set that could restrict possible
consolidation in the future.
In the more controversial cases, companies
often look to public affairs advice in order to
Heim
develop effective strategies, partly to guide
the parties through what can be an arcane
process. This is a role recognised by Director
General Lowe, who believes that ‘public
affairs firms familiar with regulation and the
policy issues that affect it can be obviously
very helpful to business in deciding how to
develop their own strategy’ (Ward 2003: 39).
This is especially true, given the large number of interested parties involved and the
ever-evolving nature of a complex process.
A further aspect, that cannot be ignored, is
the nature of media coverage of the merger
review process. There is an unprecedented
level of media scrutiny in EU competition
cases, with speculation on the outcome of
transactions, possible remedies and policy
considerations influencing the final decision
(Heim 2003b: 49). Interested parties often
seek to use media coverage to highlight certain concerns, and the Commission’s spokesperson’s service is also adept at using the
press. Indeed, it has become a policy goal in
its own right, and the Commission spokesperson should have ‘absolutely no hesitation
in defending [the Commission’s] right, often
a duty, to publicise [its] provisional intentions
when [it needs] to consult others before
acting, or where third parties are presenting
misleading information’ (Faull 2002: 65).
This requires companies to adopt a sophisticated press management strategy, as business
has ‘recognised that the press, by its very act
of reporting cases, can affect their outcome’
(Burnside 2000: 398). If the press has a
significant impact on a case, media strategies
lie within the purview of integrated public
affairs, as such strategies are intimately linked
to the regulatory decision and the perception
of the final outcome.
series of needs that corporations may have.
This includes individual companies’ reputations, as well as the reputation of senior
management. A poorly handled merger clearance can cost very dear indeed, especially if
senior management is perceived as having
miscalculated the reaction of the Commission, not effectively planned for potential
concerns or, far worse, is seen as having lost
control of the process. It is not surprising,
therefore, that failed mergers often result in
the removal of senior corporate officers.
The fall out of a high-profile merger case,
whether an in-depth review or not, is not
merely one of reputation. Customers may
well be tempted to change suppliers and it is
not unknown for competitors to seek to
persuade the Commission to extend an investigation in order to entice customers away
during a period of such uncertainty.
A further issue is the regulatory procedure
on shareholders and stock markets. Companies need to factor in the effect of the merger
review on shareholders, especially in hostile
takeovers. Cases such as Hewlett Packard’s
acquisition of Compaq or Carnival’s acquisition of P&O Princess demonstrated that companies need to pay as much attention to the
market’s perception of the merger review as it
does to the substantive investigation itself.
Another common factor in controversial
cases is the involvement of hedge funds,
which can hold massive proportions of shares
in the merging parties. The regulatory stages
in the merger review process are increasingly
seen as points at which to trade the parties’
shares, so that the markets eagerly await certain stages in a case, even at points where
there is no finality in the process. This is an
issue that a public affairs strategy must factor
in, as substantial stock fluctuations can occur
which can create a damaging distraction.
Reputation management and wider
commercial impact
ISSUES CONFRONTED BY PUBLIC AFFAIRS
IN EU MERGER REVIEW
Over and above achieving the right result,
the public affairs discipline also addresses a
There is a considerable demand for public
affairs advice around EU merger clearances.
Media management
Page 77
Problems and process: European merger control and how to use it
From a regulatory perspective, the reasons
tend mainly to be (i) that the opportunities
which the EU merger review process and
environment affords need to be maximised,
taking into account the multiplicity of actors
involved; (ii) that the parties need to apply a
level of scrutiny on the decision makers, who
are still seen as investigators, prosecutors,
judge and jury, in order to ensure that effective checks and balances are applied and (iii)
that, where policy and political arguments
are being taken into account, these issues
need to be effectively addressed.
The open nature of the EU merger review
process
Procedures under the EMCR tend to be well
known and the formal stages provide for
consultation with a range of interested parties. In fact, the European Commission is
more open to hearing the views of interested
parties compared with many other merger
control regimes. This is partly because the
European Commission has always had a consultative nature in both policy and regulation,
which has filtered across to competition
regulation. As a result, parties take advantage
of the ‘relatively open and permeable culture’
in their lobbying efforts (Hatcher 1999: 267).
In fact, lobbying the Commission is part of
‘the rules of the Brussels game, and competition cases are no different in this respect
from, say, a controversial draft directive
which the Commissioners must vote to
adopt’ (Burnside 2000: 393).
The Commission’s openness to meet interested parties is naturally extended to the
many groups involved, ranging from competitors and customers to consumers and trade
unions. In certain cases, these groups —
mainly competitors — have been said to have
a disproportionate influence on DG Competition. For example, Schneider bitterly criticised a competitor, Siemens of Germany, for
having lobbied successfully behind the scenes
to help to prohibit Schneider/Legrand (Orange, 2001). Equally, it is well documented
Page 78
that in GE/Honeywell, United Technologies
of the US and others had unparalleled access
to the case team. There are also other cases
where the Commission’s formal case took up
the submissions of third parties verbatim in
the SO.
Much of the recent criticism of the Commission’s practices has therefore been levelled
at the Commission defending the interests of
competitors rather than consumers. Clearly,
lobbying efforts have tended to seek to
address this potential threat (or opportunity).
Whether or not this criticism is valid, the
latest series of reforms aims to ensure that
merging parties do not feel that inappropriate
access by third parties is affecting their case.
Yet, as we shall see, the actual decision
making and influencing process remain unclear, so that public affairs strategies, which
address the whole informal and formal process, will continue after the reforms (Frederickson and Nourry 2003: 6).
Imperfections within the EU merger review
process
As intimated above, the EU merger review
decision-making process is somewhat different from the formal review process. In complex cases, where external considerations are
influential, parties are often faced with an
asymmetric system of persuasion. The case
team takes a preliminary view of a transaction, but is assisted by a series of consultations, within the European Commission
(DG Competition’s policy Directorate, other
relevant Directorates-General, the Commission’s Legal Service and, in Phase II cases, a
Hearing Officer and other relevant Commissioners and their staff) and externally (the
member state competition authorities). All of
these groups provide views, advice or opinions to DG Competition’s hierarchy. As a
result, ‘the Decision which Commission ultimately produces has many contributing
authors’ (Burnside 2000: 393). There are
potentially additional layers, such as a peer
review panel and a Chief Economist, all
Heim
housed within DG Competition. Therefore,
the ‘extremely complex and varied web of
relationships’ (Hatcher 1999: 271), has been
amplified through the latest series of reforms.
The effective involvement of all of these
players requires more time than the restrictive timeframe of the EMCR permits (Heim
2003a: 32), which places an onus on the
parties to understand the process and be fleet
of foot in knowing who to involve.
The problem boils down to one of understanding and transparency. The fact is that
the complexity of the Commission’s structure makes the point at which a decision is
formed unclear. The extent to which ‘other
branches of the institution have asserted
themselves and with what impact, remains
generally unknown’ (Burnside 2000: 390),
notably as regards the exact level of influence
which services outside DG Competition actually exert in merger cases. In complex
cases, however, the result tends to be ‘a single
packaged outcome, camouflaging different
points of view’ (Burnside 2000: 390). Yet,
where differing views emerge within the
Commission, parties may not be aware of
them. Consequently, they may not know
with whom they should engage and when, in
order to address concerns or counter arguments, or indeed to buttress the arguments of
those in support of the parties’ position.
This should be an issue of some concern.
The International Competition Network
(ICN), a worldwide group of competition
regulators, has recently issued their six Guiding Principles For Merger Notification and
Review, one of which was transparency. The
ICN believes that ‘the merger review process
should be transparent with respect to the
policies, practices, and procedures involved
in the review’, but notably in order to allow
the parties to know the identity of the decision maker. As Burnside makes clear, it is a
principle of natural justice that one should be
able to hear those concerns raised within the
Commission and be able to respond effectively and in good time (Burnside 2000: 393).
But it is important to remind ourselves
that, in certain cases, we are not necessarily
talking about the structured process set out
within the EMCR, as ‘it is very clear that not
all those who contribute to the decisiontaking hear the parties’ point of view, within
the procedures as set out in the Regulation’
(Burnside 2000: 393). This applies notably to
the new checks and balances set up within
DG Competition. The role of a public affairs
strategy is therefore to enable companies to
understand which groups within and outside
the Commission have a particular influence
in a particular case and, if need be, to devise
lobbying strategies to assist companies in
making their case forcefully.
When companies question the Commission’s accountability in merger review, the
issue in question often turns on a lack of
transparency in the decision-making process.
In such situations, it is understandable that
certain companies appeal to influential
groups outside the formal process, as there is
a belief that ‘there is nowhere else to go, in
order to make the Commission accept the
parties’ views’ (Heim 2003b: 52) and that ‘it
is only where the parties feel that the system
[of checks and balances] is ineffective that
they seek to appeal to the wider groups
involve in merger review’ (Heim 2003a: 32).
The skill in public affairs is to ensure that
these needs are addressed, while not alienating DG Competition. What the Commission
has sought to achieve through its most recent
reforms is to provide potential detractors
with channels of criticism, by setting up a
system to deal internally with any shortcomings; a strategy which most crisis communications experts would recognise.
The EU merger review process is only quasilegal
Hatcher correctly highlights the need to
appreciate that merger decisions ‘take account of the wider Community agenda, of
which competition and the fulfilment of
other objectives form a part’ (Hatcher 1999:
Page 79
Problems and process: European merger control and how to use it
274). The Community agenda is partly dictated by the overarching obligation on the
European Commission to actively promote
the Single Market. Underneath that obligation lie distinct policy areas — industrial or
other.
The obligation on the European Commission to promote the Single Market brings a
level of industrial policy into competition
considerations. For example, the European
Commission’s review of the ongoing restructuring of the energy and utilities sector is
affected by the need to liberalise markets, the
need to ensure security of supply and for gate
keepers to grant non-discriminatory access.
In the information society sector, the need
for open access and inter-operability also
influences merger assessment. In the Telia/
Telenor merger, for example (which was
withdrawn shortly after regulatory approval),
a condition of clearance was to unbundle the
local loop.
DG Competition has also displayed a level
of political sensitivity to other Commissioners’ portfolios and has sought to reconcile
competition policy with core European priorities. For example, DG Competition will
take due regard of policy imperatives in areas
such as culture (eg regarding book pricing)
and environment (eg renewable energy)
(Quatremer, 2002). Other Commissioners
may also bring the specificity of their portfolios to bear on competition regulation. For
example, in the media sector, the European
Culture Commissioner, Vivian Reding, has
expressly stated that media plurality and
related freedom of expression requirements
would have to be safeguarded in merger
cases. The net effect is that policy considerations, the natural home of public affairs, do
affect the way the regulator assesses consolidation and has a bearing on the outcome of
transactions in certain sectors.
A further area where companies can be
faced with policy orientations which affect
their case, is where DG Competition identifies an opportunity to expand competition
Page 80
policy through precedent. This is what
Mueller et al. term ‘aggressive enforcement’,
where DG Competition ‘appears more aggressive in developing new theories or expanding the application of old ones than it
has been in the past’ (2002: 78). There are a
series of cases one can identify where DG
Competition has sought to push the boundaries of competition theory. The Airtours/
First Choice decision is a case in point, where
the Commission extended the theory of
collective dominance, or tacit oligopolistic
collusion. In this case, the classic indicators
for a finding of collective dominance were
set aside, enabling the Commission to apply
the theory more widely and with little internal control in a series of subsequent cases.
Four years later, however, the CFI struck
down this precedent, and its judgment sets
new and restrictive guidelines to the application of collective dominance.
In cases where policy and political issues
weigh on the minds of the regulator or their
advisers, the case-making effort should be
‘properly attuned to the full range of requirements of the regulatory process’ (Hatcher
1999: 275). It is therefore clear that companies need to be aware of all the factors that
the regulator and their advisers take into
account when assessing a case (Heim, 2001:
12) and that they factor these issues into the
legal and economic arguments, as well as
tailor formal submissions to particular policy
arguments.
The impact of politics
The desire by companies involved in a
merger to seek as much support as possible is
understandable and ‘as an economy grows,
and the stakes become ever larger, firms are
naturally driven to seek protection and help
from their governments’ (Kolasky 2002).
Certainly, Henri Lachmann, the Chief Executive Officer (CEO) of Schneider, who
saw his company’s merger with Legrand
spectacularly withdrawn in the face of a
prohibition, believed that it should be quite
Heim
normal for the French authorities to be
concerned about the fate of two large French
companies, in a deal of national importance.
Lachmann also noted that it was the role of
politicians to be concerned with the procedures and methods used by DG Competition
(Orange 2001).
How far companies can generate political
support for their case is a sensitive issue.
Mueller et al. (2002) rightly warn against the
‘magic bullet’ of political intervention. Parties
should not seek to rely on their political
connections to get a deal cleared, as the EC
merger review process is not a political process
that can be won by political lobbying alone
(Mueller et al. 2002: 81). Aggressive lobbying
at the EU level is counterproductive ‘where
senior policy officials are more sensitive to
accusations of biased decisions’ (Dylla and
Knudsen 2002: 17) and there is ample evidence that lobbying in the public eye will fail.
There has been a series of recent cases in
which senior politicians have sought to publicly exert pressure on the Commission, such
as the interventions by the Swedish Prime
Minister in Volvo/Scania and the French
President and Prime Minister interventions
in Schneider/Legrand. The best known example, however, is General Electric/Honeywell, where ‘[GE’s lobbying] strategy is
widely considered its biggest mistake. It publicly barraged Monti and other top officials
with visits and phone calls from dignitaries,
like White House chief of staff Andrew Card
and CEO Welch himself, to the point where
the regulators might have felt obliged to
prove their independence’ (Goldhaber
2002). The intensity of political lobbying in
this case forced Commissioner Monti to issue
a press release rejecting the ‘politicisation of
the case’, in which he deplored ‘attempts to
misinform the public and to trigger political
intervention’ (Commission Press Release IP/
01/855, 18th June, 2001). In a high-profile
case such as General Electric/Honeywell, the
effective handling of the public affairs strategies can make or break a deal.
The consensus is that political pressure ‘has
never worked when it has been in the public
eye. Applying political pressure will likely
cause the Commission to conclude that the
parties are seeking to undermine its authority
— and thereby may poison the essential final
stage of the procedure’ (Mueller et al. 2002:
81). Indeed, one can say that publicity affects
the value of political intervention; the more
public it is, the less legitimate it tends to
appear (Heim 2003b: 52).
THE PERCEPTION OF LOBBYING
This paper has looked at the context within
which the discipline of public affairs operates,
and some of the issues which public affairs
seeks to address. One of the questions that
drive at the core of public affairs, however, is
the appropriateness and legitimacy of this
discipline. At the heart of this question lies
the concern that lobbying (largely seen by
regulators as synonymous with public affairs)
can undermine the independence of the
regulator and the objectivity of the process. If
this were the case, there would be a risk of
creating an uneven system which favours
companies that can call on political support
and would imply a worrying lack of transparency.
Inevitability of political interest in merger
review
In 2002, William Kolasky, at the time the
Deputy Assistant Attorney General at the US
Department of Justice’s Antitrust Division,
said that ‘the best thing that both new and
old antitrust enforcement regimes can do to
prevent antitrust from becoming politicized
is to make sure our decisions are soundly
grounded in economic theory and fully supported by the empirical and factual evidence’.
The objective assessment of transactions according to clear law and policy would be the
correct approach in an ideal world; however,
the reality is that mergers do not take place in
a vacuum, and ‘it is a fact of life that mergers
Page 81
Problems and process: European merger control and how to use it
stimulate political interest’ (Burnside 2000:
392).8
Clearly, it is necessary to avoid a highhanded political approach to politics, but it is
wrong to assume that mergers do not involve
extraneous policies — industrial or other. It
is equally ‘naı¨ve to suppose that, since no
political override is foreseen in the legislation, no political input occurs’ (Burnside
2000: 392). Yet, if Burnside is correct, can it
be claimed that political intervention, in the
EU context, is entirely out of place in an
anti-trust case and has no impact on the
Commission whatsoever, or even that political considerations play no role in the examination of mergers (Commission Press
Release IP/01/855, 18th June, 2001)? It
would seem that this is not the case and that
some Commission decisions ‘suggest that
concerned firms or member states had a
strong hand in informal negotiations, and
that the Commission has been keener to clear
deals than its criteria for analysis indicate’
(Zweifel 2003: 558). Indeed, there is sufficient evidence of effective politicking around
cases to argue that political intervention and
related considerations do play a role in the
final outcome of certain cases.9
Due to the nature of the decision-making
process, the influence of politics (as opposed to
policies) is difficult to gauge as ‘any political
override takes place behind the curtain, rather
than separately and publicly’ (Burnside 2000:
392). The concern must be that if politics do
play a role in merger control decisions, there
should an acceptance that such factors can play
a role and that more transparency in the
informal process is necessary where political
factors are taken into account.
its, but through the media and otherwise’
(Kolasky 2002). The first part of the statement is probably true — but the latter
provides a useful insight into a regulator’s
view of submissions outside the formal parameters of the process. Relevance or veracity
of the argument is ignored, but rather the
focus is on lobbying or media campaigns
being an inappropriate delivery method. This
distinction cannot be correct with regard to
lobbying. Advocacy comes in many forms,
and whether it is before a court, a regulator
or a policy maker, it should still consist in
producing cogent arguments based on sound
evidence. So long as regulators are swayed by
issues going beyond the forensic assessment
of fact and law, and so long as the formal
merger review process is seen to have structural imperfections, companies will seek to
advocate their case in a manner which strikes
a chord with either the regulator or those
with an influence in the process.
Is there a difference between public affairs
and lobbying, or is this one of perception? In
the context of a legal process, such as merger
review, one can make the following distinctions:
•
•
Lobbying versus public affairs
Kolasky, in setting out principles for effective
anti-trust enforcement, stated that ‘[M]ore
mature [anti-trust] agencies are increasingly
confronted by lobbyists and public relations
experts seeking to influence decisions, not
through arguments on the competitive mer-
Page 82
•
Lobbying can be understood as enacting
public affairs strategies, as public affairs is
clearly a broader discipline. Lobbying
specifically involves making arguments
directly to relevant audiences.
Lobbying tends to supplement legal arguments, by addressing ancillary issues of
importance to the main audience. The
nature of the arguments will depend
largely on the interest and authority of
the audience in question. As we have
seen in the EU merger review process,
this is often unclear. Lobbying can also
support legal arguments by ensuring that
those involved are familiar with the
nuances of a particular case, and that the
process is effectively followed.
The target audiences can be part of the
legal process in the assessment of a case, or
Heim
part of the consultation process. Target
audiences may also be wholly outside of
the process, but with influential audiences
with an impact on the overall process.
The appropriateness of public affairs in
merger cases
This is not to say that lobbying is appropriate
in all cases. In certain situations, lobbying can
be seen as an attempt to circumvent the legal
procedures by putting inappropriate pressure
on the decision makers. These situations tend
to occur where the lobbying is not undertaken by the companies themselves, but by
other advocates on their behalf (mainly national politicians or governments). Such lobbying is one step removed from the process
and these third parties may make arguments
that jar with the sensitivities of the regulator
and tend to be seen as irrelevant. The highlevel or high-profile nature of much of this
type of lobbying makes the approach inappropriate.
Public affairs should never be applied in
order to affect the proper functioning of the
process. In those cases where companies
correctly identify a need, lobbying must
nonetheless be sensitively undertaken. Officials who have a formal role in merger review (such as the Hearing Officer)
sometimes feel that the willingness of senior
regulators to meet with interested parties,
outside of the formal stages, affects their own
function and therefore the integrity of the
system (Zweifel 2003: 558). What public
affairs pressure is intended to achieve
(whether through lobbying or other techniques), is to play the rules of the game, no
matter how informal these may be, and to
impose some intellectual rigour on a regulator, where companies feel that the existing
checks and balances do not appear to be
functioning effectively.
CONCLUSION
The existence of policy and political pressures in merger review is a fact of life, and the
most effective means of addressing these
pressures is for companies to apply the appropriate discipline. In fact, the benefits of
public affairs activities (whether assisting
companies in the substantive case or in the
wider commercial ramifications) is demonstrated by market forces. It is therefore no
coincidence that the majority of law firms
specialising in EU merger control have inbuilt pubic affairs capabilities to deal with
such issues.
A fitting conclusion, which highlights the
commercial benefits of public affairs, is given
by Hatcher, who stated that ‘in addition to
the deployment of powerful legal and economic arguments, the support given by public affairs activity to the presentation of a
complex case helped PricewaterhouseCoopers gain a licence to operate in Europe’
(Hatcher 1999: 275). In the professional
services sector, which displayed oligopolistic
tendencies, this was the last major consolidation allowed by the regulator and resulted in
the withdrawal of the proposed KPMG/
Ernst & Young merger in December 1998.
The effect of public affairs in EU merger
control policy has, arguably, been considerable and beneficial. Public affairs activities
have assisted in causing the Commission to
reassess the checks and balances in the merger
review process (partly to reduce the need for
lobbying which drives at the Commission’s
authority and scope of action). Its most positive developments will be to reinforce the
analytical capabilities of the regulator, and to
ensure that the right decisions are taken.
NOTES
1. Documentation on the merger review policy
and case law is voluminous. Essential reading
for practitioners includes Cook, C. J. and
Kerse, C. S. (2000) EC Merger Control, Third
Edition. London: Sweet & Maxwell, or Bellamy, C.W. and Child, D.G. (2001) European
Community Law of Competition, Fifth Edition.
London: Sweet & Maxwell.
2. For practical steps in the merger clearance
Page 83
Problems and process: European merger control and how to use it
3.
4.
5.
6.
Page 84
process, see Frederickson, A. and Nourry, A.
(2003) Competition Regime: Dealing with the
Merger Task Force, EC Competition Law Practice
Manual. London: Practical Law Company,
and for the public affairs activities see Heim,
M. (2001) ‘Strategic communications in the
merger review process’, Global Counsel, IV(5):
11–14. For a discussion of a company’s experience in undertaking public affairs activities
in a successful Phase II case, see Hatcher, M.
(1999) ‘The presentation of a merger case to
the European Commission for approval: The
case of Price Waterhouse/Coopers & Lybrand’, Journal of Communication Management,
3(3): 260–75.
Within the EU merger review process, there
are naturally a series of additional steps which
can affect the progress of a case and be applied,
depending on the circumstances. These include referrals of whole or part of a case back
to national competition authorities, declarations of incompleteness where firms have to
resubmit their filing and ‘stop the clock’
provisions to enable the Commission to gather
further evidence and extensions of timetable.
Remedies are crucial to a successful merger
review policy, and merging firms may also
find that the restructuring of companies is
affected by the sale of assets to alleviate competition concerns. The Commission continues
to prefer structural divestments as the best
means to maintain a competitive market structure, rather than prohibitions. This is notably
the case where a market structure requires
divestments to an up-front buyer (ie one
approved in advance by the regulator) with
the aim of rebalancing a market characterised
by oligopolistic tendencies.
The submissions can be found at http://
europa.eu.int/comm/competition/mergers/
review/comments.html. For further comments see also UK House of Lords EU Select
Committee (2002) ‘The Review of the EC
Merger Regulation’, Thirty-second Report,
Session 2001–2002.
For a discussion of the issue of the Commission’s procedural accountability and the proposed reforms, see Hofmann, H. (2003)
‘Good governance in European merger control, due process and checks and balances
under review’, European Competition Law Review, 24(3): 114–31, and Heim M. (2003a)
‘Tied up in timetable: The EC’s merger reform’, Global Competition Review, 6(1): 30–3.
7. See the DG Competition Draft Best
Practices on the conduct of EC merger control proceedings, Brussels, 19/12/2002 which
can be found at http://europa.eu.int/comm/
competition/mergers/others/best_practices_
public_cons.pdf.
8. In fact, even a mature anti-trust system like
that of the United States is not immune to
claims of lobbying or political bias in merger
cases. Lobbying is a standard activity before
the US anti-trust agencies, the Department of
Justice and Federal Trade Commission; however, both Republican and Democratic administrations have shown that they are not
averse to being in favour of big business in
transactions of major economic importance
(Dylla and Knudsen, 2002: 17).
9. For example, see Burnside (2000: 390–3) on
the Magneti/Marelli and Aerospatiale/De Havilland cases, and Zwiefel (2003: 558) on the
Alcatel/Telettra case.
REFERENCES
Burnside, A. (2000) ‘Governance of EC merger
control — Bumps in a level playing field?’, in
EC Merger Control: Ten Years On, Papers from
the EC Merger Control 10th Anniversary Conference, EC/IBA, 381–403.
Dylla, B. and Knudsen, J. (2000) ‘Merger clearance in the US and Europe: A comparison’,
Working Paper 18/2002, Copenhagen Business School, Department of International Economics and Management.
Faull, J. (2002) ‘Competing for attention’, Competition Law Journal, I(1): 65–8.
Frederickson, A. and Nourry, A. (2003) Competition Regime: Dealing with the Merger Task Force,
EC Competition Law Practice Manual. London:
Practical Law Company.
Goldhaber, M. (2002) ‘US, British firms vie for
EU antitrust work’, Legal Times, 22 April.
Hatcher, M. (1999) ‘The presentation of a merger
case to the European Commission for approval: The case of Price Waterhouse/Coopers
Heim
& Lybrand’, Journal of Communication Management, 3(3): 260–75.
Heim, M. (2001) ‘Strategic communications in
the merger review process’, Global Counsel,
IV(5): 11–14.
Heim, M. (2003a) ‘Tied up in timetable: the EC’s
merger reform’, Global Competition Review,
6(1): 30–3.
Heim, M. (2003b) ‘The impact of the media on
EU merger decisions’, European Competition
Law Review, 24(2): 49–53.
Hofmann, H. (2003) ‘Good governance in European merger control, due process and checks
and balances under review’, European Competition Law Review, 24(3): 114–31.
Kolasky, W. J. (2002) ‘Comparative merger control analysis: Six guiding principles for antitrust
agencies — New and old’, Speech given at the
International Bar Association Conference on
Competition Law and Policy in a Global Context, Cape Town, South Africa, 18th March.
Mueller, T., Mahr, E. and Gutermuth, A. (2002)
‘European Union: Navigating the treacherous
shoals of EC merger clearance’, International
Financial Law Review M&A Yearbook Special
Supplement, 1st January, 77–81.
Orange, M. (2001) Interview with Henri Lachmann, CEO of Schneider, Le Monde, 30th
October, 2001.
Quatremer, J. (2002) Interview with Mario
Monti, European Competition Commissioner,
‘Les Etats sont trop soumis aux enterprises’,
Liberation, 13th June.
Reding, V. (2002) ‘Les me´dias dans une socie´te´
de´mocratique: quel e´quilibre entre la liberte´
d’expression et la protection des droits humains?’, Speech given at the Opening of the
Conference on Press Freedom, Luxembourg,
30th September, 2002.
UK House of Lords EU Select Committee
(2002) ‘The Review of the EC Merger Regulation’, Thirty-second Report, Session 2001–
2002.
Ward, P. (2003) Interview with Philip Lowe,
European Commission Director General for
Competition, Global Competition Review, 6(3):
37–40.
Zweifel, T. (2003) ‘Democratic deficits in comparison: Best (and worst) practices in European, US and Swiss merger regulation’,
Journal of Common Market Studies, 41(3): 542–
66.
DG Competition Documents
1. Council Regulation (EEC) No 4064/89 of
21st December, 1989 on the control of concentrations between undertakings. Official
Journal of the European Communities, L 395, 30/
12/1989: 0001–0012, as amended.
2. European Commission’s Green Paper on the
Review of Council Regulation (EEC) No.
4064/89 COM(2001) 745 final Brussels, 11/
12/2001.
3. Submissions received on the Green Paper on
the review of Council Regulation (EEC) No.
4064/89 (see http://europa.eu.int/comm/
competition/mergers/review/comments.html).
4. European Commission’s Proposal for a Council Regulation on the control of concentrations between undertakings revising Council
Regulation (EEC) No 4064/89 COM(2002)
711 final.
5. DG Competition Draft Best Practices on the
conduct of EC merger control proceedings,
Brussels, 19/12/2002.
Commission Press Releases
1. Commission Press Release IP/01/855, 18th
June, 2001, ‘Commissioner Monti dismisses
criticism of GE/Honeywell merger review
and rejects politicisation of the case’.
2. Commission Press Release IP/02/1856, 11th
December, 2002, ‘Commission adopts comprehensive reform of EU merger control’.
3. Commission Press Release IP/03/603, 30th
April, 2003, ‘Commission reorganises its
Competition Department in advance of Enlargement’.
4. Commission Press Release IP/03/1027, 16th
July, 2003, ‘Commission appoints Chief
Competition Economist’.
Page 85